Jesse Brown v. SAIF Corporation

The issue in this workers’ compensation case is

whether claimant is entitled to benefits for his “combined

condition” claim. Under ORS 656.005(7)(a)(B), a “combined

condition” exists when an “otherwise compensable injury”

combines with a preexisting condition, and the otherwise

compensable injury remains the major contributing cause

of that combined condition.1 In this case, claimant filed—

and his employer’s insurer, SAIF Corporation, initially

accepted—a claim for a lumbar strain combined with preexisting

lumbar disc disease and related conditions. SAIF

later denied the combined condition claim on the ground

that the lumbar strain had ceased to be the major contributing

cause of the combined condition. Claimant objected. He

did not contest that his lumbar strain had ceased to be the

major contributing cause of his combined condition. Instead,

he argued that the otherwise compensable injury was not

limited to the lumbar strain that SAIF had accepted as

part of his combined condition claim. In claimant’s view, an

“otherwise compensable injury” within the meaning of ORS

656.005(7)(a)(B) refers not just to the condition that SAIF

accepted, but also includes any other conditions not accepted

that might have resulted from the same work-related accident

that caused the lumbar strain, and that larger group

of work-related conditions continues to be the major contributing

cause of his combined condition. As a result, claimant

contended that an employer cannot close a combined condition

claim if any of those nonaccepted conditions remain the

major cause of the combined condition claim.

The Workers’ Compensation Board rejected claimant’s

argument and upheld SAIF’s denial of claimant’s combined

condition claim, concluding that existing precedent

defined the “otherwise compensable injury” component of

combined conditions to consist of the condition or conditions

that the employer has accepted as compensable. The Court

of Appeals reversed, acknowledging that its holding was

“potentially at odds” with existing precedents from both that

1 The statute refers to a “disability of the combined condition or * * * the need

for treatment of the combined condition.” ORS 656.005(5)(7)(a)(B). Throughout

this opinion we use “combined condition” as the same shorthand phrase for both.

244 Brown v. SAIF

court and this one. Brown v. SAIF, 262 Or App 640, 653, 325

P3d 834 (2014). It nevertheless concluded that those precedents

were either distinguishable or should be reconsidered.

Id. For the reasons that follow, we conclude that the Court

of Appeals erred and that the Workers’ Compensation Board

was correct.

I. FACTS

The relevant facts are not in dispute. Claimant had

a history of back problems dating back to 1993, when he was

first treated for back problems. He started work for employer

as a truck driver in 2002. That same year, he slipped and fell

on his buttocks in a restaurant bathroom. A lumbar spine

X-ray taken shortly after showed degenerative changes.

In 2006, claimant went to a hospital emergency

room complaining of back pain over the preceding month.

He was referred to an orthopedist, Dr. Matthew Gambee,

who ordered an MRI. The MRI revealed an L4-5 disc protrusion

with compression of the L4 nerve root, along with

a number of degenerative changes. Dr. Gambee performed

an epidural steroid injection, but that provided no sustained

relief.

Claimant was referred to a neurosurgeon, Dr. Hoang

N. Le, who performed surgery that included a right-side

L4-5 decompression, discectomy, and transforaminal lumbar

interbody fusion. In April 2007, claimant reported having

no back or leg pain, and he was released to full duty.

Over the course of the next year and a half, claimant performed

his regular duties as a truck driver. He experienced

some ongoing numbness in two toes of his right foot, and he

had occasional minor back pain.

On December 14, 2008, while hanging heavy

truck-tire chains under his truck, claimant felt a sudden

burning with sharp pain in his lower back that radiated

into his right leg. The next day, he went to a hospital emergency

room with the same complaints. The treating doctor

ordered X-rays of claimant’s back, which showed no

evidence of acute bone or joint abnormality. So the doctor

placed him on modified duty restrictions and prescribed

pain medications.

Cite as 361 Or 241 (2017) 245

Several days later, claimant saw Dr. Susan Davis,

who diagnosed a lumbar strain secondary to the December 14,

2008, work injury. She placed claimant on light duty restriction,

prescribed conservative treatment, and referred claimant

to physical therapy. Claimant submitted a workers’

compensation claim for his lower back pain. SAIF accepted

a claim for a disabling “lumbar strain.” The notice of acceptance

included a notice that, should claimant’s condition

worsen, he could be entitled to additional benefits for an

aggravation claim.

Claimant continued to feel pain in his right hip

and down his right leg. Dr. Davis ordered a CT scan of the

lumbar spine, which revealed L4-5 right marked foraminal

stenosis related to spondylolisthesis and spurring. Dr. Davis

referred claimant to an occupational medicine specialist,

Dr. Fernando Proano, who referred claimant back to Dr. Le

for a neurosurgical consultation.

Meanwhile, Dr. Proano examined claimant in

June 2009. He diagnosed a lumbar strain combined with

preexisting lumbar disc disease and noted that claimant’s

work accident had aggravated the preexisting conditions.

Dr. Proano again examined claimant in August 2009. He

reported that, at that point, claimant’s lumbar strain had

reached medically stationary status with no impairment

findings due to the strain. Based on Dr. Proano’s report,

SAIF issued a notice of closure that closed the claim for lumbar

strain and awarded no permanent disability benefits for

the accepted lumbar strain.

Claimant continued to experience pain and returned

to Dr. Le, who then performed a “right L4-5 instrumentation

removal and redo decompression of the L4 nerve root.” But

claimant experienced no significant relief from the surgery.

In January 2010, claimant filed a combined condition

claim for “lumbar strain combined with lumbar disc

disease and spondylolisthesis.” SAIF initially resisted, but,

after some litigation, it accepted the combined condition

claim, specifying that it was accepting, in addition to the

originally accepted lumbar strain, a combined condition

consisting of “lumbar strain combined with preexisting lumbar

disc disease and spondylolisthesis.”

246 Brown v. SAIF

Approximately two months later, SAIF ordered an

independent medical examination by Dr. Edmund Frank.

He opined that the lumbar strain combined with the lumbar

disc disease and spondylolisthesis had resolved and that the

work-related lumbar strain had ceased to be the major contributing

cause of claimant’s disability and need for treatment.

Dr. Frank concluded that claimant’s symptoms related

to right L5 radiculopathy secondary to the preexisting spondylolisthesis

at L4-5, the fusion-related pseudoarthritis at

L4-5, and the scarring of the nerve root, all of which were

unrelated to claimant’s work-related lumbar strain. SAIF

then issued a denial of claimant’s combined condition claim

as of the date that his lumbar strain had become medically

stationary, on the ground that, at that point, the accepted

lumbar strain had ceased to be the major contributing cause

of claimant’s combined condition.

Claimant requested a hearing on the denial of the

combined condition claim. At the hearing, SAIF offered the

testimony of Dr. Proano that the accepted lumbar strain had

ceased to be the major contributing cause of claimant’s combined

condition. Claimant did not challenge that evidence.

Instead, he argued that the original December 14, 2008,

work injury resulted not only in lumbar strain, but also in

worsening his preexisting conditions. In claimant’s view,

the combined condition claim includes not only the accepted

lumbar strain, but the worsening of the preexisting conditions

as well. Both the lumbar strain and the worsening of

preexisting conditions, he argued, should be considered the

“otherwise compensable injury,” which he asserted continues

to be the major contributing cause of his combined condition.

The administrative law judge rejected claimant’s

argument and upheld SAIF’s denial. The ALJ noted claimant’s

argument that the December 14, 2008, work injury

had worsened his preexisting conditions, but concluded that

the argument was beside the point, as claimant had not

filed a claim for such worsening. The ALJ noted that claimant’s

combined condition claim was for the accepted lumbar

strain and the preexisting conditions only. Under the circumstances,

the ALJ concluded, the “otherwise compensable

injury” is “limited to the lumbar strain.”

Cite as 361 Or 241 (2017) 247

Claimant sought review by the Workers’ Compensation

Board, which adopted and affirmed the ALJ’s order

with the added observation that the denial of claimant’s

combined condition claim was compelled by its own case

law, as well as case law from the Court of Appeals. Board

Member Weddell concurred, writing separately to explain

that, although the Board’s decision was indeed compelled

by existing precedent, in her view that precedent should be

reexamined. Weddell asserted that the existing precedent

was contradicted by several cited excerpts from the legislative

history of the 1990 and 1995 amendments that are

reflected in current workers’ compensation statutes. She also

observed that the existing precedent has the potential to

leave claimants without remedies in certain circumstances.

The Court of Appeals took up the concurrence’s suggestion

and reversed the Board. The court concluded that

ORS 656.005(7)(a)(B), which describes a combined condition

as a combination of an “otherwise compensable injury” and

a preexisting condition, is “injury-incident focused.” 262 Or

App at 646. Thus, the court explained, the statute “requires

a determination that there was an injury incident” that

combines with a preexisting condition to create the combined

condition claim. Id. at 646-47. That “injury incident”

is not limited to particular resulting medical conditions,

much less particular resulting medical conditions that have

been accepted, the court continued. Id. at 648. In the view

of the Court of Appeals, “there is no statutory provision

that expressly links the compensability of a combined condition

to its relationship to an ‘accepted condition.’ ” Id. The

court found confirmation of the “injury-incident focus” of the

statute in several excerpts from the legislative history of

amendments to the statute in 1990 and 1995, id. at 648-50,

which it read to reveal a legislative intent that an employer’s

acceptance of a claim “ ‘does not have any negative consequences

for the worker.’ ” Id. at 650 (emphasis deleted; quoting

statement of Representative Kevin Mannix).

In reaching the conclusion that the “otherwise compensable

injury” component of a combined condition claim

is not limited to accepted conditions, the Court of Appeals

said, “[w]e recognize that our conclusion is potentially at

248 Brown v. SAIF

odds with what we and the Supreme Court have said” in

other cases. Id. at 653. The court nevertheless suggested

that those contrary statements are better viewed as dicta

or as inadequately considered without benefit of the legislative

history on which it now relied. Id. In the end, the court

reversed and remanded the case for reconsideration in light

of its broader reading of the nature of the “otherwise compensable

injury” to include other medical conditions related

to the “injury incident,” such as the worsening of preexisting

conditions, but which were not within the scope of the workrelated

conditions that SAIF accepted. Id. at 656.

We allowed review to address the proper interpretation

of ORS 656.005(7)(a)(B) and related statutes. While

review was pending, claimant passed away. The court was

notified that claimant’s estate intended to substitute a personal

representative, once the personal representative had

been qualified by the probate court. We held the case until

August 11, 2016, when we received a motion to substitute

Jesse Brown as the petitioner on review. See Sather v. SAIF,

357 Or 122, 136, 347 P3d 326 (2015) (a “person” entitled to

workers’ compensation benefits includes a deceased worker’s

estate). The motion was allowed. In the balance of this opinion,

when we refer to “claimant,” we refer to the personal

representative of claimant’s estate.

II. ANALYSIS

On review, SAIF argues that the Court of Appeals

has significantly misconstrued the requirements of ORS

656.005(7)(a)(B) and departed from the way courts have

uniformly interpreted the statute for the last 15 years. In

SAIF’s view, “the notice of acceptance signifies the scope

of a compensable injury” for the purposes of a previously

accepted combined condition claim. SAIF contends that the

Court of Appeals, in reaching a contrary conclusion, ignored

a number of statutory provisions that expressly equate the

“otherwise compensable injury” with an “accepted condition”

in this circumstance. Moreover, SAIF argues, the Court of

Appeals relied on bits of legislative history removed from

their context, giving those bits of history significance that is

at odds with what the legislature was actually attempting to

accomplish.

Cite as 361 Or 241 (2017) 249

For his part, claimant argues that the Court of

Appeals was essentially correct in construing the “otherwise

compensable injury” as “the work accident and all of

the effects that flow from it,” not a particular medical condition.

Claimant’s argument rests on the assertion that the

relevant statutes “do[ ] not expressly (or impliedly) include

the requirement of a ‘condition.’ ” Rather, he says, they refer

to a compensable “injury,” which can be understood to apply

to an on-the-job incident that results in a medical condition.

Claimant urges us to give special attention to the legislative

history of the 1990 and 1995 amendments to the statutes,

as did the Court of Appeals. In claimant’s view, that history

reveals that the legislature did not intend the acceptance

of a claim to have any sort of limiting effect on a claimant’s

rights.

We are thus confronted with an issue of statutory

construction. We resolve that issue in accordance with the

rules of interpretation described in PGE v. Bureau of Labor

and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), and

State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009).

Among those that guide our construction of the statutes at

issue in this case is the essential principle that the best evidence

of what the legislature intended a statute to mean is

the wording of the statute that it adopted into law. As this

court explained in Gaines,

“[o]nly the text of a statute receives the consideration and

approval of a majority of the members of the legislature, as

required to have the effect of law. Or Const, Art IV, § 25.

The formal requirements of lawmaking produce the best

source from which to discern the legislature’s intent, for it

is not the intent of the individual legislators that governs,

but the intent of the legislature as formally enacted into

law[.]”

346 Or at 171. With that in mind, we turn to the statutes at

issue in this case.

A. Statutory background

We begin with some background for context. Under

Oregon’s workers’ compensation law, employers are required

to provide compensation to workers who suffer “compensable

250 Brown v. SAIF

injuries.” ORS 656.017(1). A “compensable injury” is a term

of art, meaning, with certain limitations and exceptions:

“an accidental injury, or accidental injury to prosthetic

appliances, arising out of and in the course of employment

requiring medical services or resulting in disability

or death; an injury is accidental if the result is an accident,

whether or not due to an accidental means, if it is

established by medical evidence supported by objective

findings[.]”

ORS 656.005(7)(a)(A). A “compensable injury,” for example,

does not include “[i]njury to any active participant in assaults

or combats which are not connected to the job assignment

and which amount to a deviation from customary duties.”

ORS 656.005(7)(b)(A). Similarly, it does not include “[i]njury

incurred while engaging in or performing or as the result of

engaging in or performing, any recreational or social activities

primarily for the worker’s personal pleasure.” ORS

656.005(7)(b)(B).

A worker who has suffered a compensable injury

must file a “[n]otice of an accident resulting in an injury or

death” immediately after the accident. ORS 656.265(1)(a).

The worker is then entitled to file a claim for workers’

compensation benefits. Within 60 days of the filing of that

claim, the employer is required to provide a written notice

of acceptance or denial of that claim. ORS 656.262(6)(a).

Merely paying or providing compensation is not sufficient

to constitute acceptance of a claim. ORS 656.262(10). There

must be a written notice of acceptance of a claim, which is

required to “[s]pecify what conditions are compensable.”

ORS 656.262(6)(b)(A); see also ORS 656.267(1) (employer’s

notice of acceptance is sufficient if it “reasonably apprises

the claimant and the medical providers of the nature of the

compensable conditions”). If a claimant believes that such a

written notice of acceptance incorrectly omits a compensable

condition, he or she may object at any time and file a claim

for the omitted condition. ORS 656.262(6)(d).

Ordinarily, it is the claimant’s burden to establish

that a particular injury is compensable. ORS 656.266(1).

The claimant must prove that the work-related injury is a

“material” cause of the disability or the need for treatment.

Cite as 361 Or 241 (2017) 251

See SAIF v. Sprague, 346 Or 661, 663-64, 217 P3d 644 (2009)

(discussing claimant’s burden). There are, however, at least

two exceptions to that burden.

The first such exception is triggered if an “otherwise

compensable injury”—that is, an injury that would

otherwise be compensable but for the exception—combines

with a preexisting condition to create what is known as a

“combined condition”:

“If an otherwise compensable injury combines at any

time with a preexisting condition to cause or prolong disability

or a need for treatment, the combined condition

is compensable only if, so long as and to the extent that

the otherwise compensable injury is the major contributing

cause of the disability of the combined condition or the

major contributing cause of the need for treatment of the

combined condition.”

ORS 656.005(7)(a)(B). In such combined condition cases,

the burden is altered in two respects. First, if a compensable

injury combines with a preexisting condition, it is compensable

only if the major contributing cause—not just the

material cause—of the resulting combined condition is the

compensable injury. ORS 656.266(2)(a). Second, it is the

employer’s burden to establish that the work-related compensable

injury is not the major contributing cause of the

combined condition. Id.; see also Hopkins v. SAIF, 349 Or

348, 351-52, 245 P3d 90 (2010) (describing burden in combined

condition cases).

If an employer accepts a combined condition claim,

that acceptance does not preclude the employer from later

denying the claim, should circumstances change so that the

otherwise compensable condition is no longer the major contributing

cause of the combined condition. ORS 656.262(6)(c).

If the employer believes that to be the case, it is required

to notify the claimant in writing that the “accepted injury”

is no longer the major contributing cause of that combined

condition:

“Once a worker’s claim has been accepted, the insurer

or self-insured employer must issue a written denial to the

worker when the accepted injury is no longer the major

252 Brown v. SAIF

contributing cause of the worker’s combined condition

before the claim may be closed.”

ORS 656.262(7)(b); see also ORS 656.268(1)(b) (employer

authorized to close combined condition claim if “[t]he

accepted injury is no longer the major contributing cause” of

the combined condition).

The second exception to the ordinary burden of persuasion

applies in “consequential condition” cases:

“No injury or disease is compensable as a consequence of

a compensable injury unless the compensable injury is the

major contributing cause of the consequential condition.”

ORS 656.005(7)(a)(A). In such cases, although the allocation

of the burden has not changed, the ordinary material

contributing cause standard no longer applies; the claimant

must establish that the major contributing cause of the

consequential condition was the work-related compensable

injury.

Workers’ compensation benefits may include medical

services. For an ordinary compensable injury, the claimant

is entitled to compensation for medical services for conditions

“caused in material part” by the compensable injury.

ORS 656.245(1)(a). For consequential and combined conditions,

the claimant is entitled to compensation for “only

those medical services directed to medical conditions caused

in major part by the injury.” Id.

One final bit of statutory context deserves mention.

If a claimant’s compensable injury becomes “medically stationary,”

the employer is authorized to close the claim and, if

appropriate, award permanent disability. ORS 656.268(1)(a).

After a claim has been closed, if the claimant’s condition

resulting from the original injury gets worse, the claimant

may file an “aggravation” or “worsened condition” claim.

ORS 656.273.

B. Analysis of parties’ contentions

With the benefit of that context, we turn to the

parties’ arguments. The principal issue concerns the meaning

of the “otherwise compensable injury” component of a

combined condition claim. SAIF takes the position that,

Cite as 361 Or 241 (2017) 253

in this context, the “otherwise compensable injury” refers

to the medical condition that an employer or insurer has

previously accepted. Claimant argues that nothing in the

wording of ORS 656.005(7)(a) expressly qualifies the phrase

“otherwise compensable injury” in the limited way that

SAIF suggests. In claimant’s view, the term does not refer to

a medical condition at all; rather, it refers to an event—“the

work accident”—as well as “all of the effects that flow from

it.” Thus, as claimant sees it, an “otherwise compensable

condition” includes not just the condition that SAIF previously

accepted, but also any worsening of his preexisting

conditions that may later be found to have been caused by

the original work accident.

Both parties contend that their arguments are supported

by the “plain text” of the statute. In that respect,

both parties are mistaken. There is little that is “plain”

about this state’s workers’ compensation statutes, certainly

with respect to the terminology at issue in this case. In fact,

there appears to be a tendency on the part of the legislature

to use a number of different terms in not altogether

consistent fashion, sometimes treating them as essentially

synonymous and at other times treating them as signifying

different things.

Examples are legion. ORS 656.005(7)(a)(A), for

instance, sets out the elements of a consequential condition

claim and expressly equates an “injury or disease”

with a “condition,” as not even claimant contests. On the

other hand, ORS 656.273(1) provides for compensation

for a “worsened condition[ ] resulting from the original

injury,” signifying a possible distinction between the two

terms. Still other statutes can be read either way. ORS

656.386(1)(b)(A), for example, refers to an employer’s refusal

to pay benefits because “the injury or condition for which

compensation is claimed is not compensable.” Even more

ambiguous is ORS 656.308(1), which provides that, when

a worker sustains a “compensable injury,” the responsible

employer remains obligated to pay benefits relating to “the

compensable condition,” unless the worker sustains a new

“compensable injury” involving the same “condition.” In a

similar vein, some workers’ compensation statutes refer

254 Brown v. SAIF

to acceptance of a “claim” and specify a process for “claim

acceptance,” e.g., ORS 656.262(6)(a). Other provisions

within the workers’ compensation statutes, however, refer to

acceptance of an “injury,” e.g., ORS 656.262(7)(b), or acceptance

of a “condition,” e.g., ORS 656.247(4)(b).

Compounding those ambiguities is the fact that

some of the terms themselves are reasonably capable of

more than one meaning. The term “injury,” for example,

plausibly may refer either to an event or to a resulting

condition. Webster’s defines the noun both as “an act that

damages, harms, or hurts” and as the “hurt, damage, or

loss sustained.” Webster’s Third New Int’l Dictionary 1164

(unabridged ed 2002).2 In other words, an “injury” can refer

to an incident that causes or results in harm, or it can refer

to the harm itself.

Under the circumstances, the resolution of the dispute

in this case will not turn on whether an interpretation

of one provision is inconsistent with another in the workers’

compensation statutes. Regardless of what we say about the

statutes at issue in this case, doubtless at least one provision

could be cited that arguably contradicts that interpretation

in one way or another. That is so whether we adopt the construction

advanced by SAIF, or by claimant, or by any of

the amici curiae that have proposed their own interpretations

to the court. So we turn instead to the relevant statutes

in context to determine the interpretation that best fits

the statutory scheme as a whole. See Lane County v. LCDC,

325 Or 569, 578, 942 P2d 278 (1997) (“[W]e do not look at

2 Interestingly, Webster’s appears to be the only dictionary that defines the

word “injury” to include not just harm itself, but also an event that causes or

results in such harm. The American Heritage Dictionary, for example, defines the

term as “damage or harm done to or suffered by a person * * * a particular form

of hurt, damage, or loss: a leg injury.” The American Heritage Dictionary of the

English Language 904 (5th ed 2011). Black’s likewise defines the word solely in

terms of the harm itself. It specifies that the word “injury” refers to “[a]ny harm

or damage.” Black’s Law Dictionary 801 (8th ed 2004). It goes on to explain that

the related term “accidental injury” is “[a]n injury resulting from external, violent,

and unanticipated causes; esp., a bodily injury,” and defines, in turn, “bodily

injury” to refer to “[p]hysical damage to a person’s body.” Id. The more limited

definition of the term does not appear to be a modern development. The earliest

edition of Black’s, for example, defines the term in the same way: “any wrong or

damage done to another either in his person, rights, reputation, or property.”

Henry Campbell Black, A Dictionary of Law 624 (1891).

Cite as 361 Or 241 (2017) 255

one subsection of a statute in a vacuum; rather, we construe

each part together with the other parts in an attempt to

produce a harmonious whole.”).

1. Meaning of “injury”

We begin with the statutory word “injury,” which

claimant contends refers to a work “accident.” We address

the meaning of the term as used in ORS 656.005(7)(a) and

its relevant context. We also review how the term has been

interpreted in prior case law.

a. Textual analysis

As we have noted, the term “injury” plausibly may

refer either to an event or to a resulting condition. But, as

this case so well illustrates, dictionaries do not necessarily

supply the meaning of statutory terms. They supply reasonably

possible meanings. Which of those reasonably possible

meanings is the one that the legislature most likely

intended is determined by how the terms are actually used

in the relevant statutes. See State v. Cloutier, 351 Or 68,

96, 261 P3d 1234 (2011) (“Dictionaries, after all, do not tell

us what words mean, only what words can mean, depending

on their context and the particular manner in which

they are used.” (Emphasis in original.)). In that sense, dictionaries

suggest what the legislature could have meant by

the terms it enacted. In this case, the way that the term

“otherwise compensable injury” is used in the relevant provisions

of the workers’ compensation statutes strongly suggests

that, in this context, it refers to a particular medical

condition—specifically, the one that the employer accepted

as compensable.

The use of the term “injury” in ORS 656.005(7)(a)

suggests that it does not refer to an incident; rather, it refers

to a medical condition that is the result of an accidental incident.

It does so in several ways. First, it refers to the joining

of an “otherwise compensable injury” and a preexisting condition

as a “combined condition,” strongly suggesting that

there are two separate “conditions” that combine to form the

“combined condition” claim. ORS 656.005(7)(a)(B). And, in

fact, that is the way the courts have referred to “combined

condition” claims for years. See, e.g., Luckhurst v. Bank of

256 Brown v. SAIF

America, 167 Or App 11, 16-17, 1 P3d 1031 (2000) (“[I]n order

for there to be a ‘combined condition,’ there must be two

conditions that merge or exist harmoniously.”); Multifoods

Specialty Distribution v. McAtee, 164 Or App 654, 662, 993

P2d 174 (1999), aff’d, 333 Or 629, 43 P3d 1101 (2002) (“[A]

combined condition may constitute either an integration of

two conditions or the close relationship of those conditions.”).

Second, as we just noted, the same statute sets

out the elements of a consequential condition claim and

expressly equates an “injury or disease” with a “condition,”

not an event. ORS 656.005(7)(a)(A). It provides that an

“injury or disease” is not compensable as a consequential

condition unless the major contributing cause of that “condition”

was the compensable injury. Id.

Third, the same statute defines a “compensable

injury” as “an accidental injury, or accidental injury to prosthetic

appliances.” ORS 656.005(7)(a). An “injury” to a prosthetic

appliance is not an event. It is instead the result of

an accidental event. Indeed, ORS 656.005(7)(a) specifically

refers to an “accidental injury” as one that is the “result” of

an accident. See Mathel v. Josephine County, 319 Or 235, 242,

875 P2d 455 (1994) (“[W]orkers make claims for accidental

injuries or occupational diseases, not for the causes of those

accidental injuries or occupational diseases.” (Emphasis in

original.)); Olson v. State Ind. Acc. Com., 222 Or 407, 413,

352 P2d 1096 (1960) (focus of workers’ compensation statute

is to reach “any workman who undesignedly and unexpectedly

suffered a hurt, without reference to whether the cause

of the injury itself was accidental”).3

3 There is wording in Mathel to the effect that a “compensable injury” is

an “event.” 319 Or at 240. But the court used the term “event” in a different

sense than claimant contends in this case. At issue in Mathel was the distinction

between a “compensable injury” and an “occupational disease.” Specifically, the

issue was how to categorize a heart attack. The court concluded that an “injury”

refers to a particular medical condition that occurs at a particular moment in

time, one that is “sudden in onset,” as opposed to a “disease,” which is an ongoing

condition that is gradual in onset. Id. at 240. In that sense, the court referred to

a heart attack as a medical “event.” Id. The court did not refer to the on-the-job

incident that triggers an injury as the “compensable injury.” To the contrary, the

court disclaimed that reading of the statute. Id. at 241-42. In fact, we are aware

of no prior decision of this court that refers to the “compensable injury” in ORS

656.005(7)(a)(B) as the “work accident” or the “injury incident.” All of this court’s

prior cases refer to the “compensable injury” as the accepted medical condition.

Cite as 361 Or 241 (2017) 257

Fourth, ORS 656.005(7)(a) refers to the “compensable

injury” as having been determined by “medical evidence”

supported by “objective findings.” Ordinarily, we think of

medical evidence as establishing medical conditions that

result from events that occur, not as establishing a particular

sequence of events that happened on the job. Indeed, the

statutory definition of the sort of “objective findings” that

are required to support “medical evidence” refers to “verifiable

indications of injury or disease that may include, but

are not limited to, range of motion, atrophy, muscle strength

and palpable muscle spasm,” ORS 656.005(19), clearly referring

to the sort of evidence that is required to establish particular

medical conditions. In fact, throughout the workers’

compensation statutes, the term “medical evidence” refers

to the evidence required to establish medical conditions

such as the extent of impairment, ORS 656.726(4)(f)(B)

(extent of impairment from disability must be “established

by a preponderance of medical evidence based upon objective

findings”), and the existence of an occupational disease,

ORS 656.802(2)(d) (existence of occupational disease “must

be established by medical evidence supported by objective

findings”). Cf. ORS 655.510(2) (medical benefits for prison

inmates for “injury” suffered as a result of authorized work

must be established by “medical evidence” substantiated by

“verifiable pathological indication of injury”).

Finally, ORS 656.005(7)(b)(A) specifies that a

“compensable injury” does not include an “[i]njury to an

active participant in assaults or combats” that are not

work-related. “Injury” thus refers to something that an

individual suffers as a result of an assault or combat; it

does not refer to the assault or combat itself. Likewise, ORS

656.005(7)(b)(B) states that a “compensable injury” does

not include an “[i]njury incurred while engaging in or performing

* * * any recreational or social activities primarily

for the worker’s personal pleasure.” Again, the reference to

“injury” is to a condition that is “incurred” as a result of a

particular activity. An event is not “incurred.” A condition

is, as a consequence or result of an event.

That a compensable “injury” and the accident that

may have caused it are separate things is further suggested

by ORS 656.265, which, as we have noted, requires the

258 Brown v. SAIF

worker to provide “[n]otice of an accident resulting in an

injury.” For the purposes of the workers’ compensation statutes,

the “compensable injury” is not the accident itself; it

is the condition that results from the accident. If the term

“compensable injury” meant an accident, the statute would

effectively refer to a “[n]otice of an accident resulting in an

accident,” which, obviously, makes no sense.

That a compensable “injury” refers to a particular

medical condition, and not an accidental incident, is also

confirmed by the statutory distinction between an accidental

“injury” within the meaning of ORS 656.005(7)(a)

and an occupational “disease” within the meaning of ORS

656.802(1)(a).4 Both have long been understood to refer

to medical conditions; the difference between them is the

extent to which the condition is sudden in onset. James v.

SAIF, 290 Or 343, 348, 614 P2d 565 (1981) (neurosis not an

“injury” under workers’ compensation law because condition

“developed gradually rather than suddenly”); Smirnoff v.

SAIF, 188 Or App 438, 446, 72 P3d 118 (2003) (“[T]he onset

of the condition is the determining factor in deciding if a

claim is for an injury or a disease.”).

b. Historical context and prior construction

Further supporting the distinction between the

terms is the historical context, which includes earlier versions

of the statute and judicial construction of them. See

Kohring v. Ballard, 355 Or 297, 307-09, 325 P3d 717 (2014)

(examining earlier versions of statute and judicial construction

of those versions as statutory context). The reference

to a compensable “injury” is a term that traces far back in

the history of the state’s workers’ compensation law. The

original 1913 statute required any workers’ compensation

claim to be filed within one year after the date a compensable

“injury” occurred. General Laws of Oregon 1913, ch 112,

§ 27(d). It was later amended to provide that claims must be

filed within three months of the date the “accident” occurred,

4 ORS 656.802(1)(a) defines an “occupational disease” as any “disease or

infection arising out of and in the course of employment caused by substances

or activities to which an employee is not ordinarily subjected or exposed other

than during a period of regular actual employment therein, and which requires

medical services or results in disability or death.”

Cite as 361 Or 241 (2017) 259

provided that the State Industrial Accident Commission

was given discretion to permit a filing within one year of the

time the “accident” occurred. General Laws of Oregon 1935,

ch 139, § (1)(e).

In Landauer v. State Ind. Acc. Com., 175 Or 418,

154 P2d 189 (1944), a worker in a poultry farm attempted

to dress an apparently “moribund turkey” when the turkey

kicked her in the breast. Seven months later, a lump formed

in the area where she had been kicked by the turkey. At that

point, she filed a workers’ compensation claim for breast cancer.

The commission denied the claim as untimely, having

been filed more than three months from the date of the accident.

The claimant appealed and argued to this court that

the statutory reference to “accident” referred to a “compensable

injury.” She argued that the “compensable injury” in

her case consisted of the breast cancer, which did not appear

until shortly before the filing of her claim, well within the

three-month time limit. Id. 175 Or at 422-23.

This court rejected the claimant’s argument that the

terms “accident” and “compensable injury” are synonymous.

The court extensively reviewed case law from other jurisdictions

on the point, examining the statutes and case law from

20 different states with statutes comparable to Oregon’s.

The court concluded that the weight of authority—all but

one state court—held that the terms have distinct meaning.

Quoting approvingly from an Indiana appeals court decision,

the court explained that, “ ‘[t]he word “injury” in this

section means the compensable disability and does not refer

to the date of the accident from which the “injury” or compensable

disability resulted.’ ” Id. at 427 (quoting Farmers

Mut. Liability Co. v. Chaplin, 114 Ind App 372, 380, 51 NE2d

378 (1943)).5 Thus, the distinction between a compensable

5 The court further held that the commission had not abused its discretion in

failing to permit the claimant nevertheless to file within one year of the accident,

because the claimant had failed to make a showing by means of a verified statement,

along with testimony from a qualified physician, that there was a causal

connection between the accident involving the turkey and the later appearance of

her breast cancer. Landauer, 175 Or at 452.

The court’s decision in Landauer was not an anomaly. As the court recounted,

all states but one concurred. In the years that followed, other state courts followed

suit. See, e.g., Donaldson v. Calvert McBride Printing Co., 217 Ark 625,

629-30, 232 SW2d 651 (1950) (“We think there is a clear distinction between an

260 Brown v. SAIF

“injury” and the “accident” that caused it is nothing new. It

has been around for many years.

Claimant and amicus curiae Oregon Trial Lawyers

Association (OTLA) object that we cannot read the words

“injury” and “condition” to mean the same thing for essentially

four reasons. None of those contentions is availing.

First, claimant and OTLA argue that interpreting

the two words synonymously violates the rule of construction

that requires different words to be given different meanings.

See, e.g., Dept. of Transportation v. Stallcup, 341 Or 93,

101, 138 P3d 9 (2006) (use of different terms in real estate

appraisal statute suggests that each was intended to have

different meaning). As we explained in State v. Lane, 357 Or

619, 629, 355 P3d 914 (2015), however, the fact that the legislature

has used different terms “does not, by itself, require

the terms to have different meanings.” Rather, “[s]uch

‘rules’ of interpretation are mere assumptions that always

give way to more direct evidence of legislative intent.” Id.6

accident and an injury.”); Davies v. Carter Carburetor, Division ACF Industries,

Inc., 429 SW2d 738, 747-48 (Mo 1968) (an injury is not an accident, but what is

caused by an accident); Atlas Coal Corp. v. Scales, 198 Okla 658, 660, 185 P2d

177 (1947) (“injury” refers to “the wrong or damage done to the person,” while

“accidental” “describes the noun by ascribing to ‘injuries’ a quality or condition of

happening or coming by chance or without design”).

6 The “rule” of consistency is one that courts are especially careful not to

apply too rigidly. As one leading treatise explains,

“more than most canons, this one assumes a perfection of drafting that, as an

empirical matter, is not often achieved. Though one might wish it otherwise,

drafters more than rarely use the same word to denote different concepts,

and often (out of a misplaced pursuit of stylistic elegance) use different words

to denote the same concept.”

Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal

Texts 170 (2012).

In a number of prior decisions, this court has acknowledged that problem,

concluding that the legislature sometimes uses different words to mean the same

thing. In State v. Gonzalez-Valenzuela, 358 Or 451, 471, 365 P3d 116 (2015), for

example, the court addressed the meaning of a statute that prohibited permitting

a minor to enter or remain in a place where “unlawful activity involving controlled

substances is maintained or conducted.” The court noted that “[i]t is not

clear that ‘maintain’ and ‘conduct’ must be given distinct definitions.” Id. at n 13.

Citing an earlier decision, State ex rel Bloom v. State Bd. of Dental Examiners, 96

Or 529, 190 P 338 (1920), the court noted that it had previously determined that,

sometimes, there is no substantial distinction between the two terms. Id.

Courts in other jurisdictions likewise have long recognized the fact that sometimes

statutes use the same terms to mean different things. See, e.g., Atlantic

Cite as 361 Or 241 (2017) 261

In this case, there is such direct evidence of legislative

intent. The relevant statutes themselves treat the terms

“injury” and “condition” as synonymous. Thus, for example,

ORS 656.268(1)(b) provides that the employer may close a

combined condition claim if the accepted “injury” is no longer

the major contributing cause of the combined condition.

The very next sentence of the same section goes on to state

that,

“[w]hen the claim is closed because the accepted injury is

no longer the major contributing cause of the worker’s combined

or consequential condition or conditions, and there is

sufficient information to determine permanent disability,

the likely permanent disability that would have been due to

the current accepted condition shall be estimated.”

ORS 656.268(1)(b). In other words, when a combined condition

is closed, impairment is determined with respect to the

original accepted “condition,” that is, the original accepted

“injury.” See generally Schleiss v. SAIF, 354 Or 637, 648, 317

P3d 244 (2013) (statute requiring apportionment of impairment

due to accepted “condition” refers to the percentage of

total impairment to which the compensable “injury” contributed);

South Lane County Sch. Dist. #45-J3 v. Arms, 186 Or

App 361, 366, 62 P3d 882, rev den, 335 Or 578 (2003) (holding

that the term “accepted condition” in ORS 656.268(1)(b)

refers to the “accepted injury”).

The statutes thus explicitly equate the term

accepted “injury” with accepted “condition.” Were claimant

correct that an accepted “injury” is distinct from an accepted

“condition” in this context, we would be required to conclude

that the word “injury” has two different meanings within

the same section of the statute. Even accepting the fact that

there is some slippage in terminology within the workers’

compensation statutes generally, we find it highly unlikely

that the legislature would have intended a word to mean one

thing in one sentence but another thing in the next sentence

of the very same subsection. See Burke v. DLCD, 352 Or 428,

Cleaners & Dyers v. United States, 286 US 427, 433, 52 S Ct 607, 76 L Ed 1204

(1932) (“It is not unusual for the same word to be used with different meanings in

the same act, and there is no rule of statutory construction which precludes the

courts from giving the word the meaning which the Legislature intended that it

should have in each instance.”).

262 Brown v. SAIF

440, 290 P3d 790 (2012) (unlikely that legislature uses the

same term in the same sentence to mean different things).

Second, claimant and OTLA argue that treating

the words “injury” and “condition” as essentially synonymous

undermines a basic sequence of events evident in

several provisions of the workers’ compensation statutes;

namely, that injuries cause conditions. They point to statutes

such as ORS 656.273(1), which provides “aggravation”

rights for “worsened conditions resulting from the original

injury.” If an “injury” is a condition, they argue, such statutes

anomalously refer to a condition resulting from an original

condition.

The initial problem with that argument is that, as

we have just noted, statutes such as ORS 656.268 explicitly

treat the two terms as synonymous. Aside from that, if claimant

and OTLA are correct, then by parity of reasoning, other

statutes would make no sense, as well. ORS 656.262(3)(a),

for instance, refers to “accidents” that may result in an

“injury.” If an “injury” already refers to an accident, then

the statute anomalously would refer to an accident resulting

from an accident. The phrase “accidental injury” also

appears throughout the workers’ compensation statutes.

Similarly, the same statute refers to reports of the date,

time, cause, and nature of “the accident and injuries.” ORS

656.262(3)(a)(A). If the two terms mean the same thing,

the statute makes little sense. See, e.g., ORS 656.005(7)(a)

(defining “compensable injury” to mean “accidental injury”);

ORS 656.126(1) (referring to a worker receiving an “accidental

injury” that arises out of and in the course of employment);

ORS 656.204 (referring to death resulting from “accidental

injury”); ORS 656.226 (the date of the “accidental

injury”); ORS 656.307(1)(a)(C) (responsibility for payment

of compensation for “one or more accidental injuries”). None

of those references would make sense if the words “accident”

and “injury” referred to the same things.

Third, claimant and OTLA argue that conflating

the terms “injury” and “condition” confuses legal and

medical causation. They contend that compensability of

an “injury” is a legal question, referring to “an event in

the course and scope of work,” while compensability of

Cite as 361 Or 241 (2017) 263

a particular “condition” is a medical one, determined by

reference to medical evidence. As we noted earlier, however,

ORS 656.005(7)(a) expressly refers to establishing

the compensability of an “otherwise compensable injury”

with “medical evidence” supported by “objective findings,”

a term elsewhere defined by statute to mean “verifiable

indications of injury or disease that may include, but are

not limited to, range of motion, atrophy, muscle strength

and palpable muscle spasm,” ORS 656.005(19). (Emphasis

added.) Such evidence manifestly refers to medical conditions,

not “events that occur in the course and scope of

work.”

Finally, OTLA argues that two other statutes use

the words “injury” and “condition” clearly to mean different

things. One such statute is ORS 656.308(1), which describes

employer responsibility for compensation when a worker

“sustains a new compensable injury involving the same

condition.” OTLA reasons that the use of the two different

terms suggests that one must refer to an “accident” and the

other to a particular medical condition that flows from that

accident. OTLA’s logic does not necessarily follow, though.

The fact that the legislature used two different terms does

not establish that the first of them—“injury”—refers to an

on-the-job “accident,” as OTLA contends. That is to say, even

assuming that the use of the two different terms suggests

different meanings, it does not follow that the legislature

intended the terms to have the particular meanings that

OTLA asserts.

In any event, there is nothing especially anomalous

about one medical condition “involving” another. A

medical diagnosis of “arthritis,” for instance, can “involve”

subsidiary medical conditions such as “inflammatory process

or a degenerative condition of a soft tissue interface

between two movable bones.” Hopkins, 349 Or at 353; see

also Hutchings v. Amerigas Propane, 275 Or App 579, 584,

365 P3d 636 (2015), rev den, 358 Or 833 (2016) (medical

diagnosis of “cervical strain” can “involve” other medical

conditions, including spondylosis of the cervical spine and

damage to the long tracks of the cervical cord). OTLA offers

no explanation for its assertion to the contrary.

264 Brown v. SAIF

The other statute that OTLA cites is ORS

656.386(1)(b)(A), which provides for attorney fees in

some cases in which an “injury or condition” is accepted

or denied. Here again, OTLA’s conclusion does not necessarily

follow from its premise. The fact that the statute

refers to “injury or condition” does not suggest that the

word “injury” refers to an on-the-job accident, only that it

may mean something other than a “condition.” Moreover,

the fact that two words are expressed in the alternative

does not by itself establish that the legislature intended

them to mean different things. In legislation and in common

speech, the disjunctive can be taken to mean alternatives

that are equivalents. Cf. Burke, 352 Or at 435-36

(discussing multiple possible meanings of “or”).

c. Legislative history

Claimant argues that reading the workers’ compensation

statutes to equate the “injury” component of the

statutory term “otherwise compensable injury” in ORS

656.005(7)(a)(B) with a medical “condition” is contradicted

by the legislative history of the statute. In advancing that

argument, claimant adopts the analysis of the Court of

Appeals. The Court of Appeals, in turn, relied on two bits

of legislative history concerning amendments to the workers’

compensation statutes in 1990 and 1995, respectively.

A careful review of those bits of legislative history, however,

reveals that neither supplies support for the conclusions

that claimant and the Court of Appeals draw from it. An

examination of other legislative history that the Court of

Appeals did not cite, moreover, tends to support the reading

of the statute that we have determined that an analysis of

its text so strongly suggests.

d. 1990 amendments: Statement of Jerry Keene

The Court of Appeals first cited remarks of Jerry

Keene, a nonlegislator witness, who spoke in favor of the

1990 special-session legislation that introduced the combined

condition provisions to the workers’ compensation

statutes. Or Laws 1990, ch 2, § 15. Keene, the court said,

testified that the amendments “did not change ‘the basic

industrial injury definition’ ” in the existing law. 262 Or App

Cite as 361 Or 241 (2017) 265

at 648-49 (quoting Tape Recording, Joint Interim Special

Committee on Workers’ Compensation, SB 1197, May 3,

1990, Tape 8, side B (statement of Jerry Keene)). From that

quote, the court concluded: “Thus, a proponent of the legislation

indicated that there was no intent to change the

incident-based definition of a ‘compensable injury.’ ” 262 Or

App at 649 (emphasis in original).

The problems with the court’s reliance on that history

are several. To begin with, it begs the question; that

is, it assumes the very issue in contention. The court began

with its assertion that the existing law defined a “compensable

injury” to refer to an injury-producing incident, because

the court found no statute to the contrary. It then invoked

the legislative history for the conclusion that the legislature

did not intend to change existing law. But the court’s

reliance on the legislative history of the 1990 amendments

makes sense only to the extent that its assumption about

the existing law was correct in the first place. As we have

noted, it was not.

Aside from that, the Court of Appeals appears to

have taken the legislative history out of context. The 1990

special session of the legislature was convened primarily to

overhaul Oregon’s workers’ compensation laws. See generally

SAIF v. Drews, 318 Or 1, 6-7, 860 P2d 254 (1993). In general,

the focus of the new legislation was to make the state’s workers’

compensation system more cost-effective for employers

and more efficient for workers. See Exhibit B, Joint Interim

Special Committee on Workers’ Compensation, SB 1197,

May 3, 1990 (letter from the Governor’s Workers’ Compensation

Labor Management Advisory Committee to Governor

Neil Goldschmidt proposing changes to workers’ compensation

system to “control the costs of Oregon’s workers’

compensation program”); Exhibit P, Joint Interim Special

Committee on Workers’ Compensation, SB 1197, May 3, 1990

(summary fiscal analysis provided by Legislative Fiscal

Office concerning “anticipated premium reductions” associated

with the proposed changes); Exhibit F, Joint Interim

Special Committee on Workers’ Compensation, SB 1197,

May 7, 1990 (analysis provided by SAIF Corporation discussing

cost savings under proposed changes); Tape Recording

Joint Interim Special Committee on Workers’ Compensation,

266 Brown v. SAIF

SB 1197, May 7, 1990, Tape 26, Side A (statement of Matt

Hersee, Administrator, Workers’ Compensation Division,

Department of Insurance and Finance) (discussing anticipated

savings that would result from proposed changes).

A key component of that legislative effort was to

alter the standard of causation that applied to combined

condition claims. See Drews, 318 Or at 7-8 (describing legislative

history of adoption of “major contributing cause” standard).

The imposition of that standard was intended, among

other things, to reduce the number of combined condition

or consequential condition claims. See generally Errand v.

Cascade Steel Rolling Mills, Inc., 320 Or 509, 525, 888 P2d

544 (1995) (reviewing legislative history of 1990 legislation,

which “narrowed the definition of ‘compensable injury’ in

ORS 656.005(7)(a) to reduce the number of injuries that

would be compensated under the Workers’ Compensation

Law”).

It was the new standard of causation that Keene

addressed in the portion of the legislative history that the

Court of Appeals cited. He did not testify that the proposed

amendment “did not change ‘the basic industrial injury definition’

” of what constitutes a “compensable injury,” as the

court suggested. Brown, 262 Or App at 648-49. What he

said was that the standard of causation that was currently

“in the basic industrial injury definition” that applies not

to a combined or consequential condition, but to the “initial

industrial injury,” had not changed, as the following, fuller

quotation makes clear:

“I would like to tell you that this language is far from

ambiguous and uncertain as has been represented to you

today. In fact, it does not change in one iota the standard

of causation for the initial industrial injury. That language

is arising out of and in the course of employment, which

the courts translate as material contributing cause. More

than negligible, less than half, but significant. That’s the

standard. Material contributing cause. It means any partial

cause. That has not changed in the basic industrial

injury definition. The only things we tried to do, or least

I did in a similar effort was to attack conditions that were

coming into the system that were there before the injury

and things that were coming in after.”

Cite as 361 Or 241 (2017) 267

Tape Recording, Joint Interim Special Committee on

Workers’ Compensation, SB 1197, May 3, 1990, Tape 8,

Side B (statement of Jerry Keene). The cited 1990 legislative

history thus provides no support for the conclusion that the

“otherwise compensable injury” component of a combined

condition refers to an “injury incident,” and not the injury

itself.

Perhaps more important, other legislative history

appears to suggest that, when legislators and witnesses did

address the issue, they often used the terms “injury” and

“condition” synonymously. For example, during the same

hearing from which the above quotation was taken, a legislator

asked how the new law would work in the case of

a worker whose back goes out when picking up something,

and the worker already has degenerative arthritis. The legislator,

Senator Bob Shoemaker, asked, “Would the traumatic

injury itself be compensable?” Id. (statement of Sen

Shoemaker). Keene replied:

“Absolutely. It would be what’s called the lit-up arthritic

condition. And lighting up goes away. The trouble is, once

you get even a partial contribution to a condition that

degenerative arthritis is part of, any treatment directed at

the arthritis stays in the system forever. There are lifetime

medical rights. But under this scenario of this statute—

what happens in most situations, the case never drops out

of the system until the doctor is willing to say that that

past injury plays absolutely no causal role in the treatment

that he’s rendering. And most doctors are very, very reluctant

to say that. But in this scenario, once the doctor is

willing to say well, that sprain, in and of itself has receded,

and at this point what we’ve got is arthritis. That’s what’s

going to be there.”

Id. Thus, Keene explained that, when the medical condition—

the work-related back sprain—ceases to be the major cause

of the combined condition, the new law would apply.

Perhaps even more significant are the comments of

Representative Kevin Mannix a few days later, addressing

the subject of standards of causation under the new legislation

and referring to whether work is the major contributing

cause of a “given condition”:

268 Brown v. SAIF

“In terms of the standard for the compensability of an

industrial injury, we do not change the law to major contributing

cause. * * * We keep the standard for compensability

of an industrial injury itself as whether work is a

material contributing cause of a given condition.”

Tape Recording, Joint Interim Special Committee on

Workers’ Compensation, SB 1197, May 7, 1990, Tape 26,

Side A (statement of Rep Mannix) (emphasis added); see

also Tape Recording, Joint Interim Special Committee on

Workers’ Compensation, SB 1197, May 3, 1990, Tape 8, Side

B (statement of Rep Jim Edmundson) (referring to “otherwise

compensable injury” as “work-related condition” and

“on-the-job condition”).

e. 1995 Amendments: Statement of Representative

Mannix

The second piece of legislative history on which

the Court of Appeals relied, concerns the comments of

Representative Mannix regarding proposed amendments

intended to “reinforce” some of the changes that

had been made in the 1990 legislation. Tape Recording,

Senate Committee on Labor and Government Operations

Committee, SB 369, Jan 30, 1995, Tape 15, Side A (statement

of Rep Mannix).7 In the course of summarizing the

proposed amendments, Mannix more than once referred

to the “compensable condition” in the existing law as “the

injury incident.” Id.; Tape Recording, House Committee on

Labor, SB 369, Mar 1, 1995, Tape 38, Side B (statement of

Rep Mannix) (“work incident”). The Court of Appeals found

those statements to be especially strong evidence of the

legislature’s intention to maintain the focus on the “injury

incident,” and not the medical condition that the employer

accepted. Brown, 262 Or App at 649-50.

7 The proposed changes to ORS 656.005(7)(a)(B) were as follows (with new

material in bold and deleted material in bracketed italics):

“(B) If [a] an otherwise compensable injury combines at any time with

a preexisting disease or condition to cause or prolong disability or a need

for treatment, the [resultant] combined condition is compensable only if,

so long as and to the extent that the otherwise compensable injury is [and

remains] the major contributing cause of the disability of the combined

condition or the major contributing cause of the need for treatment of

the combined condition.”

Or Laws 1995, ch 332, § 1.

Cite as 361 Or 241 (2017) 269

Again, the court’s reliance on the legislative history

is problematic for a number of reasons. At the outset,

it appears that Representative Mannix was not addressing

the significance of the proposed amendments; rather, he was

referring to the meaning of the “compensable injury” component

of a combined condition claim under law that had

been enacted several legislative sessions earlier. Ordinarily,

a legislator’s views on the meaning of existing law are of

little, if any, probative value. As this court explained in

DeFazio v. WPPSS, 296 Or 550, 561, 679 P2d 1316 (1984),

“[t]he views legislators have of existing law may shed light

on a new enactment, but it is of no weight in interpreting

law enacted by their predecessors.” See also Comcast Corp.

v. Dept. of Rev., 356 Or 282, 327, 337 P3d 768 (2014) (“What

later legislators thought is irrelevant to what an earlier legislature

intended with an enactment[.]”).

Moreover, a more complete review of the legislative

history reveals that Mannix at other times during the enactment

process referred to a compensable “injury” not as an

event or incident, but as “the work-related condition.” When

introducing the amendments to the Senate Committee on

Labor and Government Operations, for example, Mannix

explained that the bill

“[p]ermits a claim denial when preexisting conditions are

the major cause of the need for treatment. This gets back to

where we were in our discussion before: the major contributing

cause, preexisting conditions and how long you have

to keep providing care for those when you had an industrial

injury. This permits a denial of further responsibility after

the work-related condition has been treated to the extent

that the work event is no longer the major cause of disability

or the need for treatment.”

Tape Recording, Senate Committee on Labor and Government

Operations, SB 369, Jan 30, 1995, Tape 15, Side

B (statement of Rep Mannix) (emphasis added). In that

instance, Mannix apparently used the terms “work event”

and “work-related condition” interchangeably.

In a later hearing before the House Committee on

Labor, Mannix used different terminology, referring to the

“compensable injury” as a particular medical condition.

270 Brown v. SAIF

When asked to give an example of how the combined condition

statute works, Mannix explained:

“If the physician says, ‘no, this is the aging process, work

may have had some impact but it’s mainly the aging process,’

then it won’t be covered and the fact that you have a

strain unless the two combine and stay combined so that

the strain is the major contributing cause of some element

of that degenerative disc disease. There’ll be—the point of

the combination ending will be when the strain is no longer

the major contributing cause.”

Tape Recording, House Committee on Labor, SB 369, Mar 1,

1995, Tape 38, Side B (statement of Rep Mannix) (emphasis

added).

Later in the hearing, Mannix again referred to back

“strain” as an example of the compensable “injury” component

of a combined condition claim:

“say you have degenerative disc disease—and everybody

does at some point in life, usually at the age of 40 and discs

are wearing down—and you suffer a strain and the strain

combined with your degenerative disc disease. * * * But

eventually, the strain resolved or becomes a very minimal

strain, it’s still interacting some with the degenerative disc

disease. There are some that would argue that, ‘well, at

that point degenerative disc disease remains compensable

when there’s some interaction.’ * * * The point would be to

say, ‘well, wait a minute.’ The strain that you had—lifting

incident is usually a soft tissue—has basically resolved. You

might have some residuals of that—the strain will remain

compensable but the degenerative disc disease is no longer

going to be eligible for treatment as part of your claim

because the injury is not the major cause of that degenerative

disc disease.”

Tape Recording, House Committee on Labor, SB 369, Mar 1,

1995, Tape 39, Side A (statement of Rep Mannix).

Aside from the multiple instances in which Mannix

referred to a compensable “injury” as a medical “condition,”

there are numerous instances throughout the legislative

history of the 1995 amendments in which legislators, legislative

staff, and witnesses did likewise. For example,

upon introduction of the 1995 amendments in the Senate,

Senator Gene Derfler, one of the bill’s sponsors, offered

Cite as 361 Or 241 (2017) 271

a detailed, section-by-section summary of the proposed

amendments. Among other things, the summary explained

that amendments to ORS 656.262(6)(c)—which would permit

employers to deny a combined or consequential condition

when the “otherwise compensable injury” ceases to be

the major cause of the combined condition—would “permit

a denial of responsibility after the work-related condition

has been treated, to the extent that it is no longer the major

cause of disability or need for treatment.” Exhibit 7, Senate

Committee on Labor and Government Operations, SB 369,

Jan 30, 1995, at 13 (statement of Sen Gene Derfler) (emphasis

added).

Staff measure summaries of the 1995 amendments

described the effect of the amendments in similar

terms. Describing proposed amendments to ORS

656.262(6)(c), for instance, a summary stated that the

amendments permitted a denial “after the work-related

condition has been treated and is no longer the major cause”

of the combined or consequential condition. Staff Measure

Summary, Senate Committee on Labor and Government

Operations, SB 369, Jan 30, 1995, at 6 (emphasis added).

Likewise, the summary described the effect of amendments

to ORS 656.262(7)(a)—which authorize the denial

of combined condition claims when the “accepted injury” is

no longer the major cause of the combined condition—as

requiring denial “[a]fter the work-related condition ceases

to be the major contributing cause.” Id. at 7 (emphasis

added).

Thus, claimant’s and the Court of Appeals’ reliance

on a reference by Mannix to a compensable “injury” as an

“injury incident” is an especially slim reed on which to rest

their reading of ORS 656.005(7)(a)(B). At best, it shows that

at least one legislator provided not entirely consistent signals

about the meaning of the terms at issue. In such cases,

we are ordinarily reluctant to give legislative history much

weight. State v. Cloutier, 351 Or at 102 (“The fact of the matter,

however, is that the legislative history * * * provides a

little something for everyone and does not clearly resolve the

matter one way or the other.”); Arken v. City of Portland,

351 Or 113, 155, 263 P3d 975 (2011) (legislative history not

helpful because it “is confusing and conflicting”). At worst, it

272 Brown v. SAIF

is at odds with not only the textual and contextual analysis

that we have described but also with other portions of the

legislative history that claimant and the Court of Appeals

do not cite. In such cases, we are not inclined to give it any

weight at all.

2. Meaning of “compensable” injury

The foregoing analysis establishes that the “injury”

component of the phrase “otherwise compensable injury” in

ORS 656.005(7)(a)(B) refers to a medical condition, not an

accident. But the issue remains whether that phrase refers to

the particular medical condition that an employer or insurer

previously accepted, as opposed to something broader. Said

another way, the issue is whether the “compensable” component

of the phrase means “accepted” under the circumstances

presented here. We turn then to that issue, beginning

with the text in its relevant context, before turning to

prior judicial construction of the term.

a. Textual analysis

An examination of ORS 656.005(7)(a)(B) in context

establishes that the legislature most likely intended the

phrase to refer to a specific kind of medical condition or disability,

namely the one that an employer previously accepted.

Recall that, under ORS 656.005(7)(a)(B), a combined condition

is compensable unless the “otherwise compensable

condition” is no longer the major contributing cause of that

combined condition. ORS 656.262(7)(b) then states that

an employer must issue a written denial of the combined

condition claim “when the accepted injury is no longer the

major contributing cause of the worker’s combined condition

before the claim may be closed.” (Emphasis added.) The latter

statute thus unmistakably equates the “otherwise compensable

injury” with the “accepted injury.” Likewise, ORS

656.268(1)(b) provides that the employer is authorized to

close the combined condition claim if “[t]he accepted injury

is no longer the major contributing cause” of the combined

condition. (Emphasis added.) Again, the statute explicitly

equates the “otherwise compensable injury” component of

the combined condition claim with the “accepted injury.”

If, as we have concluded, the word “injury” in this context

Cite as 361 Or 241 (2017) 273

means a medical condition, it necessarily follows that the

statutory term “accepted injury” means the accepted medical

condition.

In other words, the linchpin of claimant’s argument

and the Court of Appeals’ analysis—that “there is no statutory

provision that expressly links the compensability of a

combined condition to its relationship to an ‘accepted condition,’

” 262 Or App at 648—is incorrect. The relevant statutes

provide precisely such a link.

Claimant and OTLA object that ORS 656.262 and

ORS 656.268 merely set out notice requirements and do not

have the effect of determining what is or is not a compensable

combined condition claim. The objection, however, is

squarely contradicted by the wording of the statutes themselves,

which are not merely about notice. They establish a

process for “[s]pecify[ing] what conditions are compensable,”

ORS 656.262(6)(a), and set out the process for denying, ORS

656.262(7), and later closing, ORS 656.268(1)(b), a combined

condition claim. That reading of the statutes is confirmed by

the legislative history, as we describe below, which shows

that those statutes were enacted in direct response to earlier

Court of Appeals case law concluding that the then-existing

statutes had included no mechanisms authorizing employers

to close combined condition claims when the compensable

injury had ceased to be the major contributing cause of

the need for treatment.

Claimant and OTLA further object that nothing in

the definition of the term in ORS 656.005(7)(a) explicitly connects

the meaning of “otherwise compensable injury” with

acceptance of a worker’s claim, and the definition of the term

in that statute predates the adoption of ORS 656.262(7)(b).

The statement is correct, as far as it goes. But the conclusion

that claimant and OTLA draw from it—that “otherwise

compensable injury” has nothing to do with acceptance—

does not necessarily follow. Although the original definition

of “compensable injury” in 656.005(7)(a) did not explicitly

link the term with acceptance, the fact remains that the

courts long have supplied that very link. We turn, then, to

prior construction of the relevant statutes.

274 Brown v. SAIF

b. Prior judicial construction

As far back as the early 1980s, this court concluded

that an employer’s written acceptance had the

effect of defining what constituted “compensable injuries.”

In Bauman v. SAIF, 295 Or 788, 670 P2d 1027 (1983), for

example, the court held that, once an employer or insurer

accepts a particular condition, it may not later reverse that

acceptance and challenge its compensability. The court’s

rationale was that treating the acceptance as defining the

scope of compensable injuries binds employers to cover the

accepted conditions and prevents later attempts to retreat

from covering what previously had been accepted. To hold

otherwise, the court explained, “would encourage degrees

of instability in the workers’ compensation system that we

do not believe the statute contemplates.” Id. at 793; see also

Georgia-Pacific v. Piwowar, 305 Or 494, 499, 753 P2d 948

(1988) (“In the absence of fraud, misrepresentation or other

illegal activity, an insurer who accepts a claim for compensation

may not later deny the same claim.”). Relatedly, in

Johnson v. Spectra Physics, 303 Or 49, 58, 733 P2d 1367

(1987), the court held that, when an employer or insurer

issues a partial denial of a worker’s claim, the worker must

appeal that denial if he or she believes that work caused

additional compensable injuries or diseases. The legislature’s

enactment of amendments to ORS 656.262 requiring

employers or insurers to specify in their notices of acceptance

which conditions or injuries are compensable codified

that principle of existing case law.

Case law construing that codification makes clear

that the phrase “otherwise compensable injury” refers to the

particular medical condition that an employer has accepted

as compensable. In particular, Multifoods, 333 Or 629, is

close in point. In that case, the claimant suffered a back

injury when working for an employer, and he filed a combined

condition claim. The employer accepted an “acute lumbar

strain (combined condition),” because the lumbar strain

had combined with some preexisting degenerative lower

back disease. Id. at 631-32. The employer later denied the

combined condition on the ground that the accepted acute

lumbar strain was no longer the major contributing cause of

the combined condition. Id.

Cite as 361 Or 241 (2017) 275

This court upheld the employer’s denial of the combined

condition claim. The court explained that, under ORS

656.262(7)(b), an employer is authorized to deny a previously

accepted combined condition claim when “the accepted

injury is no longer the major contributing cause of the worker’s

combined condition.” Id. at 637 (emphasis added). In

that case, the court said, “because the lumbar strain was no

longer the major contributing cause of claimant’s physical

complaints, ORS 656.262(7)(b) permitted employer to issue

a denial of the claim.” Id. at 638. Thus, under Multifoods, the

accepted medical condition—in that case, lumbar strain—

was the “otherwise compensable injury,” not the occupational

accident that caused it. In so holding, Multifoods followed

a line of Oregon appellate court case law stretching

back several decades. See, e.g., Roseburg Forest Products

v. Zimbelman, 136 Or App 75, 79, 900 P2d 1089 (1995)

(“[T]he compensable injury is the medical condition” that

results from the on-the-job accident.).

This court interpreted the phrase “compensable

injury” in the same manner in Sprague, 346 Or at 672.

That case involved a dispute over whether an employer

was required to pay expenses for medical services. ORS

656.245(1)(a) provides for the payment of medical services

for “every compensable injury,” and further provides that,

in the case of a consequential or combined condition claim,

the employer or insurer is required to pay those medical services

directed to “medical conditions caused in major part by

the [compensable] injury.” In that case, the claimant injured

his knee at work and submitted a claim for a meniscus tear.

Sprague, 346 Or at 666. The employer accepted that claim,

and the claimant underwent surgery. Id. Years later, as a

result of that surgery, the claimant developed arthritis in

the knee, requiring a knee replacement. Id. at 666-67. But

in the intervening years the claimant had become obese,

and the knee-replacement surgery could not be performed

until he underwent gastric bypass surgery. Id. The claimant

filed a consequential claim for the gastric bypass surgery.

Id.

The court framed the issue as whether the gastric

bypass surgery was directed to a medical condition caused

in major part by the compensable injury. Concluding that

276 Brown v. SAIF

the surgery was compensable, the court explained that

“[t]he ‘compensable injury’ here is claimant’s original meniscus

tear, caused by a workplace accident.” Id. at 672. The

court determined that the gastric bypass surgery was necessary

to address the claimant’s arthritic knee condition,

and the major contributing cause of that condition was the

original, accepted meniscus tear. Id. at 673-75. Once again,

the court plainly referred to a “compensable injury” as the

previously accepted medical condition that was caused by an

on-the-job accident.

Claimant acknowledges Multifoods and the fact

that it held that the combined condition in that case was no

longer compensable because the accepted injury—the particular

medical condition that the employer had accepted—was

no longer the combined condition’s major cause. Claimant

nevertheless argues that the decision lacks precedential

force because of an absence of analysis. The Court of Appeals

went further, arguing that Multifoods actually supports its

conclusion that the “otherwise compensable injury” component

of a combined condition claim refers to the “injury incident.”

262 Or App at 655.

Concerning the contention that Multifoods was

short on analysis, we disagree. The court noted that, under

ORS 656.262(7)(b), the employer was authorized to deny a

combined condition claim when the “accepted injury” was

no longer the major contributing cause of the combined condition.

There was no dispute that the accepted injury was

the lumbar strain, the medical condition that the employer

had previously accepted. It is not clear to us what additional

analysis was required.

As for the Court of Appeals’ suggestion that

Multifoods actually supports its reading of the relevant statutes,

it appears that, in characterizing Multifoods that way,

the court relied on the fact that, at one point in its opinion,

this court examined the question whether substantial evidence

supported a finding that the major contributing cause

of the combined condition was the claimant’s degenerative

condition. This court quoted a statement from the claimant’s

attending physician that, although the major cause was

“[i]nitially [the] accident,” the resulting strains should have

Cite as 361 Or 241 (2017) 277

resolved, and there was no further reason for the claimant’s

symptoms other than the degenerative disease. 333 Or at

637.

The Court of Appeals apparently interpreted this

court’s quotation of the claimant’s doctor’s reference to the

initial “accident” as meaning that this court viewed the

“otherwise compensable injury” in that case as the accident

itself, rather than the accepted injury. This court, however,

quoted the doctor not for her opinion as to the initial cause

of the condition, but for her opinion that—whatever that

initial cause may have been—the major cause later became

the preexisting degenerative condition. Moreover, whatever

else might plausibly be read into this court’s quotation from

the claimant’s physician, the fact remains that it expressly

relied on ORS 656.262(7)(b) for its conclusion that the

employer was authorized to deny the combined condition

claim because “the accepted injury”—in that case, a particular

medical condition, a lumbar strain—was no longer the

major contributing cause of that combined condition. 333 Or

at 637 (emphasis added).

c. Legislative history

Claimant argues that treating a “compensable”

injury as an “accepted” condition conflicts with the legislative

history of the 1995 amendments to the workers’ compensation

statutes. In that regard, claimant again relies on

the opinion of the Court of Appeals. And again, a careful

reading of the particular snippet of history on which the

court relied offers no support for the conclusion that claimant

and the court draw from it.

During hearings on the 1995 amendments, Mannix

stated:

“The acceptance [of the combined condition] itself does not

have any negative consequences for the worker. The negative

consequences are if something isn’t paid. If later on

there is an issue about whether there is a new injury, it

is important to go back and see what was accepted on the

claim.”

Tape Recording, House Committee on Labor, SB 369, Mar 6,

1995, Tape 46, Side A (statement of Rep Mannix). The court

278 Brown v. SAIF

emphasized the first sentence of those remarks as a refutation

of the position that the legislature intended the scope

of the accepted injury to limit the nature of the “otherwise

compensable injury” in a combined condition claim. Brown,

262 Or App at 650.

The quoted excerpt, however, appears to have

been taken from its context. In making those comments,

Mannix was not discussing either the amendments to ORS

656.005(7)(a)(B) generally or the meaning of an “otherwise

compensable injury” particularly. Rather, the subject

of that portion of his testimony was a separate part of the

bill concerning new and omitted conditions claims, ultimately

enacted as ORS 656.262(6)(d) and ORS 656.267. To

the extent that Mannix’s comments were directed at those

amendments, they make perfect sense: The acceptance of

a claim has no “adverse consequences” to the claimant,

because, if the acceptance omits conditions that claimant

believes should have been included, the new provision would

provide an avenue of relief.

What is more, it is not entirely clear that Mannix’s

comments actually were about then-proposed amendments

to those sections. Rather, his comments appear to be directed

at his understanding of the original statutory requirement

that employers or insurers specify accepted conditions,

enacted five years earlier.8 As we have noted above, a legislator’s

comments on the intended meaning of legislation

adopted years earlier are entitled to no weight. See DeFazio,

296 Or at 561 (so stating).

More importantly, other legislative history confirms

that, contrary to that court’s reading of the statute, the legislature

affirmatively intended that employers be authorized

to deny combined condition claims when the medical conditions

that they previously accepted ceased to be the major

cause of the combined conditions.

8 The quoted statement was preceded by Mannix’s comment that the law

requiring a carrier to specify accepted conditions was “designed in 1990 * * * for

responsibility fights. I’m one of the people who supported putting it in. We wanted

to know what was being accepted as part of this claim so it was documented.”

Tape Recording, House Committee on Labor, SB 369, Mar 6, 1995, Tape 46, Side

A (statement of Rep Mannix).

Cite as 361 Or 241 (2017) 279

Recall that the 1990 legislative overhaul altered

the standard of causation that applied to combined condition

claims, requiring an employer to provide compensation

“so long as” the “otherwise compensable injury” remains

the “major contributing cause” of the combined condition.

ORS 656.005(7)(a)(B). Following the 1990 special session,

the Court of Appeals concluded that, although that legislation

required employers to compensate combined condition

claims once it is established that the major cause of the

combined condition was the otherwise compensable injury,

the legislation failed to provide any mechanism for terminating

those benefits once the otherwise compensable injury

ceased to be the major cause of the combined condition. See,

e.g., United Airlines, Inc. v. Brown, 127 Or App 253, 257, 873

P2d 326, rev den, 319 Or 572 (1994). That court concluded

that ORS 656.005(7)(a)(B) merely defined a worker’s “substantive

right to disability and medical benefits.” Id. The

court explained that “[n]othing in the text or context of

ORS 656.005(7)(a)(B) suggests that the legislature intended

that provision to provide an employer with the procedural

authority to deny an accepted claim.” Id.

In 1995, the legislature enacted a major revision

to the workers’ compensation statutes, in large part in

response to a number of court decisions that had interpreted

the 1990 legislation. As Senator Derfler explained when he

introduced SB 369 to the legislature:

“Whenever the law changes, the new language must be

tested by the courts. By mid-1993, interpretations of SB

1197 were appearing from the Court of Appeals and later

from the Supreme Court. As these cases were decided, it

became clear that the actual language of SB 1197 was,

in many cases, ambiguous or failed to clearly express the

intent of the reforms. Provisions of the bill intended to

reduce litigation contained too many loopholes.”

Exhibit 7, Senate Labor and Government Operations

Committee, SB 369, Jan 30, 1995, at 1 (statement of Sen

Derfler). SB 369 was intended to address a number of those

prior appellate court decisions. One of them was United

Airlines. To address the “loophole” identified by that Court

of Appeals decision, the legislature enacted provisions that

are now codified at ORS 656.262 and ORS 656.268, which

280 Brown v. SAIF

expressly provide a process for an employer to deny a combined

condition claim when the “accepted” injury is no longer

the major cause of the combined condition. Id. at 13-15. See

also SAIF v. Belden, 155 Or App 568, 572-74, 964 P2d 300

(1998), rev den, 328 Or 330 (1999) (“Now, an insurer can accept

a combined condition pursuant to ORS 656.005(7)(a)(B)

without being concerned that it will be obliged to continue

to pay compensation for that condition if it stops being compensable.”).

Id. at 574.

3. Policy arguments

Claimant argues that, “[i]f ‘compensable injury’ is

defined by the conditions in the notice of acceptance, then

the compensable injury becomes severely limited to what

the insurer deems acceptable and will not reflect all of the

medical effects caused by the work accident.” In particular,

claimant contends that permitting the employer’s acceptance

to determine the scope of an “otherwise compensable

injury” leaves him without a remedy for the worsening of his

preexisting condition.

The problems with that complaint are two-fold. To

begin with, it is essentially a policy argument. The fact of

the matter is that the statutes explicitly equate the “otherwise

compensable injury” component of a combined condition

claim with the “accepted injury.” Arguments about whether

that is fair or produces results at odds with public policy

are better directed to the legislature. See Booth v. Tektronix,

Inc., 312 Or 463, 473, 823 P2d 402 (1991) (“Weighing of policy

arguments [in the context of workers’ compensation law]

is within the purview of the legislature, not the courts.”).

Even putting that aside, though, our reading of the

statutes does not leave a worker in claimant’s circumstances

bereft of a remedy for an employer’s failure to accept, in

claimant’s words, “all of the medical effects caused by the

work accident.” Claimants who believe that an employer’s

acceptance wrongly omits any such medical effects of a work

accident are free to challenge the scope of the employer’s

acceptance at any time, under ORS 656.262(6)(d).

In fact, if claimant were correct that an “otherwise

compensable injury” refers not to an accepted condition but

Cite as 361 Or 241 (2017) 281

more broadly to a “work accident” and “all the effects that

flow from it,” the statute providing claimants the remedy of

filing a new or omitted condition claim would serve no purpose

at all. A claimant would never have to file such a claim,

because the “otherwise compensable injury” already would

include any additional medical conditions flowing from the

work accident that the employer failed to accept. It is one

thing for legislation to include some slippage in terms or an

occasional redundancy. It is an altogether different thing to

conclude that an entire section that the legislature took the

trouble to enact has no effect whatever. As this court noted

in Cloutier,

“[A]t the least, an interpretation that renders a statutory

provision meaningless should give us pause, both as a matter

of respect for a coordinate branch of government that

took the trouble to enact the provision into law and as a

matter of complying with the interpretive principle that, if

possible, we give a statute with multiple parts a construction

that ‘will give effect to all’ of those parts.”

351 Or at 98.

Likewise, claimant was not without a remedy for

his worsened conditions. As we noted above, the workers’

compensation statutes expressly provide a remedy for worsening.

See ORS 656.273 (spelling out procedure for obtaining

compensation for “worsened-condition” or “aggravation”

claims). Indeed, the original notice of acceptance advised

claimant that, should his symptoms worsen, he would

be entitled to file such a claim. And the ALJ in this case

observed that that very remedy was available to claimant,

noting that claimant, for some unexplained reason, had

failed to avail himself of it. The fact that claimant did not

file such a claim is no reason to now adopt his novel interpretation

of the workers’ compensation statutes.

Claimant also invokes the policy concerns voiced

by Workers’ Compensation Board Member Weddell in her

concurring opinion. Specifically, claimant asserts that our

reading of the relevant statutes cannot be correct because

it would preclude an injured worker from obtaining compensation

for diagnostic medical services “to investigate the

282 Brown v. SAIF

complete result” of a work accident, and such a result is poor

public policy.

As we have noted, the workers’ compensation statutes

expressly address the subject of the compensability of

such medical services in ORS 656.245. This case does not

involve that issue. In fact, it is the subject of ongoing litigation

in other cases. See, e.g., SAIF v. Carlos-Macias, 262 Or

App 629, 325 P3d 827, rev pending (2014) (holding that such

diagnostic medical services are compensable). Accordingly,

we will express no opinion on the subject one way or the

other beyond observing once again that statutory construction

generally does not start with a desired policy outcome

and then work back from there to the construction that

achieves it. Such medical services may or may not be compensable.

Whether they are will depend on the careful construction

of the relevant terms of the applicable statute in

accordance with ordinary rules that apply to that task. If

ORS 656.245 ultimately proves unavailing to a worker seeking

compensation for medical services in the circumstances

that claimant describes, that will be a matter for the legislature

to address.

In summary: ORS 656.005(7)(a)(B) provides that,

when an “otherwise compensable injury” combines with a

preexisting condition, the combined condition is compensable

only so long as the otherwise compensable injury is the

major contributing cause of the combined condition. That is

to say, when the otherwise compensable injury ceases to be

the major cause of the combined condition, an employer is

authorized to deny further benefits and close the claim. ORS

656.262(7)(b) and ORS 656.268(1)(b) expressly require an

employer to take that action when the “accepted injury” is

no longer the major cause of the combined condition, apparently

equating the “otherwise compensable injury” with

the injury that the employer previously accepted. And the

term “injury” in that context refers to the particular medical

condition that the employer accepted. Thus, an employer

is authorized to deny further benefits and close a combined

condition claim when the medical condition that the

employer previously accepted ceases to be the major contributing

cause of that combined condition.

Cite as 361 Or 241 (2017) 283

The foregoing perhaps could have been more plainly

stated in the relevant statutes. As we noted at the outset of

this opinion, the relevant statutes are rife with ambiguities.

Still, the foregoing interpretation is the one most consistent

with the workers’ compensation statutes as a whole, in light

of prior judicial interpretations, and taking into account

their legislative history. The identification of the intended

meaning of a statute is not a precise science, and often our

best efforts to apply rules of interpretation produce no more

than an estimation of what the legislature likely intended.

See Bell v. Tri-Met, 353 Or 535, 542, 301 P3d 901 (2013)

(statutory construction analysis sometimes yields “no neat

solution, and the best answer lies in sifting the analytical

sand for probability, not certainty, of legislative intent.”).

III. APPLICATION

We turn, then, to the proper disposition of this case

in light of the correct understanding of the relevant statutory

terms. Claimant’s combined condition claim characterized

the “otherwise compensable injury” as “lumbar strain”

caused by the December 14, 2008, accident. SAIF accepted

the combined condition claim, specifying that the claim consisted

of “lumbar strain combined with preexisting lumbar

disc disease and preexisting spondylolisthesis.” Claimant

never challenged the scope of that acceptance, as he was

entitled to do. The “accepted injury” thus defined and limited

what was the “otherwise compensable injury” for purposes

of ORS 656.005(7)(a)(B). It is now undisputed that the

accepted lumbar strain no longer is the major contributing

cause of the combined condition. Under ORS 656.262(7)(b),

an employer is entitled to deny a combined condition claim

when the accepted injury is no longer the major contributing

cause of that combined condition. The Workers’ Compensation

Board therefore correctly upheld SAIF’s denial of claimant’s

combined condition claim, and the Court of Appeals erred in

concluding to the contrary.

The decision of the Court of Appeals is reversed. The

final order of the Workers’ Compensation Board is affirmed.